On Friday's episode of JEOPARDY!, the $1,000 answer in the Solve for "Ex" category was, "If the murderer had blood type A, finding that a suspect has type O is this kind of evidence." One contestant gave the question of "What is exclusionary?" Alex Trebeck deemed this question to be incorrect. Another contestant then buzzed in and gave the question of "What is exculpatory?" That was deemed to be the correct question. Later in the episode, Alex told the first contestant that the staff had reviewed the response and deemed it to be correct based upon recent legal publications. So, was this correction correct, and is the term "exclusionary evidence" something that courts, litigants and scholars do use in connection with blood/DNA evidence?

The answer is "yes." For example, look at this excerpt from People v. Silva, 2006 WL 1756066 (Cal.App. 1 Dist. 2006):

Dr. William Shields, a professor of Biology at State University of New York in Syracuse, who testified for the defense as an expert in the area of DNA in a forensic context, testified about the general use of forensicDNA. Dr. Shields opined that a laboratory that did its validation studies on Profiler Plus at 150 RFUs, and later lowered its RFU values to 100 without doing additional validation studies, would not be following proper scientific procedure. The manufacturer of Profiler Plus recommends an RFU cutoff of 150. The FBI laboratory uses a 200 RFU cutoff for inclusionary evidence, and will go down to 50 RFU for exclusionary evidence. A danger in lowering the RFU cutoff is that it becomes difficult to tell the difference between real peaks and false peaks. Analysis at less than 200 RFUs suggests a degradation of or small amounts of the DNA specimen; the results in such a case would not necessarily be reliable. (emphasis added)

The DNA evidence excluding Petitioner from the blood evidence on the shoe was new to Petitioner and was not available at the 2004 (first) state habeas hearing. The 2007 (second) state habeas court completely overlooked this new exclusionary evidence and summarily dismissed Petitioner's Zain III claim, holding that the state court had already addressed Petitioner's arguments about the materiality of the DNA evidence and its effect on Petitioner's jury trial in the 2004 (first) habeas hearing. The state court's reasoning is fundamentally flawed, in that it refused to recognize the importance of the new exclusionary evidence developed since the first habeas hearing. The resulting summary dismissal resulted in a complete miscarriage of justice and explains why the claim was not developed on the record and fully adjudicated at the state level. (emphases added).

While concerns regarding states' rights, judicial conservation, and the value of finality in the criminal justice system are still valid, DNA testing poses a serious challenge to the other commonly-accepted restrictions on federal habeas corpus. For example, the arguments favoring the strong presumption that a verdict is correct and the likelihood that more accurate determinations of guilt or innocence diminishes with time are weakened by the advent of DNA testing. The presumption that verdicts are correct is contradicted by the fact that there is a growing number of cases that have been vacated by exclusionary evidence resulting from DNA testing. It also appears that the results of DNA testing not only maintain their evidentiary significance over extended periods of time, but also increase in probative value as "technological advances and growing databases amplify the ability to identify perpetrators and eliminate suspects." (emphasis added).